| Frost v Frost |
| 2008 NY Slip Op 02225 [49 AD3d 1150] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Alfred L. Frost, III, Appellant-Respondent, v Michelle Frost,Respondent-Appellant. |
—[*1] William R. Hites, Buffalo, for defendant-respondent-appellant.
Appeal and cross appeal from a judgment of the Supreme Court, Erie County (Erin M.Peradotto, J.), entered July 24, 2006 in a divorce action. The judgment, inter alia, distributed theparties' marital assets.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby providing in the 17th decretal paragraph that plaintiff shall receive a credit of half the amounthe paid to reduce the principal balance of the mortgage on the marital residence after defendanthad moved out of that residence, by vacating the amount of weekly child support awarded in the24th decretal paragraph, and by vacating the 25th decretal paragraph and as modified thejudgment is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, forfurther proceedings in accordance with the following memorandum: Plaintiff husband appealsand defendant wife cross-appeals from a judgment of divorce entered upon a referee's report. Wereject the contentions of both parties with respect to Supreme Court's award of maintenance todefendant. "As a general rule, the amount and duration of maintenance are matters committed tothe sound discretion of the trial court" (Boughton v Boughton, 239 AD2d 935, 935[1997]), and we perceive no abuse of discretion here. The record establishes that the courtappropriately considered defendant's "reasonable needs and predivorce standard of living in thecontext of the other enumerated statutory factors" set forth in Domestic Relations Law §236 (B) (6) (a) (Hartog v Hartog, 85 NY2d 36, 52 [1995]). Further, "the court has greatflexibility and discretion to fashion an equitable award" in distributing the marital assets(Lester v Lester, 237 AD2d 872, 874 [1997]), and the court properly exercised thatflexibility and discretion in awarding defendant, in addition to maintenance, $50,000 to be paidfrom marital assets to pursue additional education. The court also properly required plaintiff tomaintain a policy of life insurance to secure his maintenance obligation (see DomesticRelations Law § 236 [B] [8] [a]).
Contrary to the contention of defendant, the court properly concluded that she failed to rebutthe presumption that the proceeds of her personal injury settlement, which were deposited intothe parties' joint checking account, were marital property (see Garner v Garner, 307AD2d 510, 512 [2003], lv denied 100 NY2d 516 [2003]; see also Di Nardo v DiNardo, 144 AD2d 906 [1988]). In distributing the marital property, the court also properlydenied the request of plaintiff for a credit for payments he made toward the carrying charges ofthe marital residence (see Beece v Beece, [*2]289 AD2d352, 353 [2001]). The court erred, however, in denying his request for a credit of half the amounthe paid to reduce the principal balance of the mortgage on the marital residence after defendanthad moved out with the children (see MacDonald v MacDonald, 226 AD2d 596, 597[1996]). We therefore modify the judgment accordingly, and we remit the matter to SupremeCourt to recalculate the distributive award.
With respect to child support, the court properly considered the statutory factors indetermining that the application of the statutory formula to combined parental income in excessof $80,000 would be unjust or inappropriate (see Domestic Relations Law § 240[1-b] [c] [3]; [f]; see generally Matter of Cassano v Cassano, 85 NY2d 649, 654 [1995]).Further, in light of that determination, the court did not abuse its discretion in directing plaintiffto pay 100% of the children's private school tuition (see Domestic Relations Law §240 [1-b] [c] [7]; Fruchter v Fruchter, 288 AD2d 942, 943 [2001]), the cost of providinghealth insurance benefits (see Domestic Relations Law § 240 [1] [d]), and medicalexpenses not covered by insurance (see Gentner v Gentner, 289 AD2d 886, 889 [2001]).The court also did not abuse its discretion in denying plaintiff's request to claim both children astax exemptions (see Gundlach v Gundlach, 223 AD2d 942, 944 [1996], lv denied88 NY2d 802 [1996]). The court erred, however, in including the maintenance awarded todefendant as her income for the purpose of calculating the child support award (see Lee v Lee, 18 AD3d 508, 510[2005]; see also Huber v Huber, 229 AD2d 904 [1996]). We therefore further modify thejudgment accordingly, and we direct Supreme Court upon remittal to recalculate the childsupport award. Present—Scudder, P.J., Centra, Fahey, Green and Pine, JJ.